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Wednesday, April 2, 2014

There has been a storm of comment and controversy since the
National Labor Relations Board ruled last week that scholarship football
players at Northwestern University are “employees” of the school who have the
right to unionize under the federal labor law governing private sector
employers. The College Athletes Players Association (CAPA), the union seeking
to represent the players, is
moving ahead full-steam with a vigorous persuasive campaign to convince the 87
Northwestern football players to vote for union representation when the NLRB
conducts its election soon. On its website CAPA speaks to why college athletes need a union, calling this a “fight for justice.” Criticism
has come from many corners, not excluding politicians such as Sen. Lamar Alexander (R-Tenn.) who commented, “[i]magine a university’s basketball players
striking before a Sweet Sixteen game demanding shorter practices, bigger dorm
rooms, better food and no classes before 11 a.m.This is an absurd decision that will destroy
intercollegiate athletics as we know it.”

We first blogged about the players’ effort to unionize in February. Some of the
fundamentals we set out there are worth reiterating now that the NLRB has ruled
that a union election can go forward:

The critical question in the football
players’ organizing effort is whether the athletes will be afforded the
protections of theNational Labor Relations Act (NLRA), meaning whether the
universities could take action against them, such as revoking scholarships or
enforcing penalties, because of their engaging in such activity, or would the
federal labor law protect them against such a response?

To have such NLRA protection, the
athletes must show that they are employees. This is where the controversy lies.
The NCAA has stated its position is an emphatic no.

And
now the NLRB has said yes.This ruling hardly
ends the matter; it merely engages the battle.As I explained in an interview published in Sunday’s Star Tribune SportsQ&A section:

Although Northwestern has indicated it will seek review [from]
the full board in Washington, that will not have the effect of putting a hold
on the election. … That union election should go forward shortly. And the
football players will vote. Those ballots are secret, and they’re sealed.
They’ll be impounded by the board until the review is complete, and that could
take a year. … The whole process could take a couple of years.

One indicator [of what might result from bargaining between the
players and the school] is what the union has said it wants to bargain for, and
the number one thing I’ve seen is lifetime coverage of medical expenses
resulting from football-related injuries or conditions. … But all that’s just a
wish list. It’s all subject to bargaining.

On Wednesday, CAPA headed to Capitol
Hill for scheduled meetings with lawmakers as the union braces for an
appeal of the ruling. These meetings were expected to provide a chance for former
Northwestern quarterback Kain Colter — the face of the college athletes labor
movement — and Ramogi Huma, the founder and president of CAPA, to spell out one
of their chief concerns, which is providing for the medical needs of athletes.
Huma said the group also was concerned that the NCAA would lobby Congress to
prohibit unionizing by college athletes. In a statement, Stacey Osburn,
director of public and media relations for the NCAA, said Huma's concern was
"unwarranted." A Northwestern official has saidthat the students
were not employees and that unionization and collective bargaining were not the
appropriate methods to address their concerns. Not least among the issues raised by
the NLRB ruling last week is what the proper analysis is, or should be, when deciding which members of a higher education community are
employees with protected rights to unionize, bargain, and strike under the federal labor law. The NLRB is
currently considering that question in a variety of contexts. In its 2004 Brown University decision, the labor
board held that graduate students, research assistants, and proctors were not
employees, but primarily students and thus were not afforded the protection of the labor law. There are many gray areas in this context.There is at least one that is more black and white, though: adjunct
faculty clearly has a protected right to unionize; and with active support from
SEIU’s Adjunct Action program they are
aggressively doing that in a number of markets nationwide, including
Minneapolis Saint Paul, as reported in the Star Tribune and the Twin Cities Daily Planet. Most employers in
higher education should be taking action now to consider and plan for how they
could be affected by this increasing and wide-ranging union activity on
campus.

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